Citation Nr: 1543802 Decision Date: 10/14/15 Archive Date: 10/21/15 DOCKET NO. 10-14 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a skin condition. 2. Entitlement to an initial rating higher than 50 percent for posttraumatic stress disorder (PTSD) for the period from March 5, 2007 to April 27, 2010. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Sangster, Associate Counsel INTRODUCTION The Veteran served on active duty from November 2002 to March 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, TX, which granted service connection for PTSD and assigned an initial 50 percent disability rating effective March 5, 2007, but denied service connection for a skin condition. In a March 2014 rating decision, the RO increased the assigned initial rating for PTSD to 70 percent effective April 28, 2010. In a March 2014 statement, the Veteran indicated that he was satisfied with this increased award for his PTSD and, instead, wanted to pursue a higher award than the initial 50 percent for the period from March 5, 2007 to April 27, 2010. The Veteran testified before the undersigned Acting Veterans Law Judge (AVLJ) at a videoconference hearing in July 2015. A copy of the transcript is of record. FINDINGS OF FACT 1. In a March 2014 written statement, the Veteran withdrew his claim for a skin condition. 2. For the initial period from March 5, 2007 to April 27, 2010, the occupational and social impairment from the Veteran's PTSD has most nearly approximated reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria are met for withdrawal of the appeal of the claim a skin condition. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 2. The criteria for entitlement to an initial rating higher than 50 percent for PTSD for the period from March 5, 2007 to April 27, 2010 have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that assistance would aid in substantiating the claim. VA must also notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record shows that the Veteran was mailed a letter in June 2007advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The June 2007 letter also provided the Veteran with appropriate notice with respect to the disability rating and effective date elements of his claim. VA also has made the required reasonable efforts to assist him in obtaining evidence necessary to substantiate this claim. 38 U.S.C.A. § 5103A. To this end, his service treatment records (STRs), VA medical treatment records and lay statements have been obtained and associated with his claims file for consideration. In addition, the Veteran has been afforded the appropriate VA examination, as set forth below. The Board has determined that this examination was adequate because it was factually informed, medically competent, and responsive to the issue on appeal. 38 C.F.R. § 4.2 (2015). Finally, the Veteran testified at a videoconference hearing in July 2015. The hearing was in compliance with required procedures as the presiding AVLJ duly explained the issues and identified possible sources of evidence that may have been overlooked and that might be potentially advantageous to the Veteran's position. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran has not asserted during or since the hearing that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or otherwise identified any prejudice in the conducting of the hearing. The hearing focused on the elements necessary to substantiate the claim and, consistent with Bryant, the presiding AVLJ complied with the duties set forth in section 3.103(c)(2). II. Skin Condition As already alluded to, the Veteran submitted a written statement in March 2014 withdrawing his claim for a skin condition. According to 38 C.F.R. § 20.204(b), a withdrawal of an appeal must be in writing, must include the name of the Veteran, the applicable claim number, and a statement that the appeal is being withdrawn, and must be received by the Board prior to issuance of a decision regarding the claim being withdrawn. The Veteran's statement is in writing, includes his name and claim number, and clearly expresses his intent to withdraw his appeal of this claim. Since the Board had not yet issued a decision concerning this claim, the criteria are met for withdrawal of the appeal of this claim. See id. When a pending appeal is withdrawn, there is no longer an allegation of error of fact or law with respect to the determination that had been previously appealed. Consequently, dismissal of the pending appeal with regards to this issue is the appropriate disposition. See 38 U.S.C.A. § 7105(d). Accordingly, no further action is warranted by the Board concerning this claim, and the appeal of this claim is dismissed. Id. III. Increased Rating for PTSD The Veteran seeks a higher initial evaluation than 50 percent for his PTSD for the period from March 5, 2007 to April 27, 2010. Disability evaluations are determined by evaluating the extent to which a claimant's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2015). If two evaluations are potentially applicable, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2015). The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is entitlement to a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's PTSD is rated under 38 C.F.R. § 4.130, DC 9411, which utilizes the general rating formula for mental disorders. Under that code, a 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and the inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. According to the Fifth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-V), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). Considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that the criteria for an initial rating higher than 50 percent for PTSD for the period from May 5, 2007 to April 27, 2010 have not been met. Prior to April 27, 2010, the Veteran's PTSD manifested as reduced reliability and productivity due to symptoms including a depressed affect, panic attacks, nightmares, anxiety attacks two to three times a month, disturbances of motivation and mood, irritability, anger, difficulty with falling and staying asleep, difficulty in establishing and maintaining effective work and social relationships. Relevant medical evidence includes a July 2007 VA examination. The Veteran reported that he had immigrated to the U.S. in 1999. He was currently married, but separated from his wife, who was living in New York City with her family, while he lived in Texas. He stated he had a two year old daughter and one child on the way. The Veteran informed the examiner that his wife had been visiting him in the last month or so though. It was noted that the Veteran had three years of college in accounting and had an Associate's Degree in this field. He currently worked at Wal-Mart doing night stocking and had been at this job since March after he was discharged from the Army. He served in support of operation Iraqi Freedom for a 12 month tour from 2004 to 2005. He was medically boarded out of the military due to PTSD. On mental status examination, the Veteran presented as a tense, attractive, thin, male who was well dressed and groomed. He was verbal and cooperative with his examination. He had a thick accent, but was clearly understood and reported that he could clearly understand the examiner. He was estimated to have high average intelligence. His thought process was logical, coherent and relevant. His affect was mildly depressed. The Veteran was tense and mildly restless during the interview. He was well oriented to time, place, person and situation. His reasoning and judgement was good. Fund of general information and verbal comprehension were average. The Veteran reports some problems with concentration and short term memory, but no major problems with this were noted during the examination. The examiner commented that the Veteran had already been screened for possible traumatic brain injury (TBI) and this came up negative. In addition, the Veteran reported having a depressed mood, primarily in relation to his trauma, and separation from his wife. The examiner observed that the Veteran had previously been diagnosed with major depressive disorder, but based on his statements in the current examination, the examiner stated that the Veteran's depressed mood seemed to overlap a great deal with his PTSD symptoms and appeared primarily related to the PTSD. The examiner noted that the Veteran persistently avoided thinking about his trauma. He avoided news and other stimuli that would remind him of it. The examiner commented that the Veteran showed signs of diminished interest and interpersonal detachment. While he described the some goals he wanted to pursue, he worried that he would end up destitute and overwhelmed by his PTSD. He reported persistent arousal symptoms including sleep disturbance, increased anger, concentration problems and exaggerated startle. The examiner observed that the Veteran did not clearly describe hypervigilance symptoms. Moreover, the examiner observed that there was a notation of "trauma specific hypnagogic illusions" in the Veteran's history. During the examination, the Veteran described vivid memories and sometimes hearing screaming of wounded soldiers at night when he awoke from sleep, but no other hallucinatory or illusory phenomena. The examiner, however, stated that the Veteran did not show signs of any delusional thinking. The Veteran denied any homicidality or history of combativeness. He did report some suicidal ideation when he was separating from his wife, but had no plans to act on such thoughts, and he was not having suicidal thoughts currently. He worked steadily since his discharge and reported some mild problems with conflict on the job, although he stated he had been able to control his anger better recently. He had not missed work. While he appeared to be doing well in his current job, he had not been working in the accounting field because of concerns about preoccupation with his symptoms and some concentration difficulties. The examiner commented that the Veteran's PTSD had moderate impact on his social life. The Veteran described a strong social, support network, but physical separation from most of his social supports. The examiner noted that the Veteran was able to complete a normal range of activities of daily living without significant impairment and was generally able to care for himself. The Veteran reported he used to play soccer, but he had problems with anger outbursts and irritability in this setting, therefore, he avoided it. The Veteran indicated he had one close friend from the military who lived in Austin, but that he had limited contact with him. The examiner then opined that the Veteran met the full criteria for a diagnosis of PTSD, which he described as chronic and moderate at this point. He commented that while the Veteran showed signs of some depressive features, they related to PTSD and did not warrant a separate diagnosis. The examiner continued that the Veteran was uncertain of his future and lacked confidence, but he did have some clear life goals and had been active in treatment. He noted that the Veteran reported some improvement in his relationship with his wife and had been able to maintain steady employment. The examiner described the Veteran's prognosis as fair based on these factors. He found the Veteran competent for VA purposes and capable of managing his own VA funds independently. The examiner stated that, overall, the veteran showed signs of PTSD of moderate severity. The Veteran's GAF score was 55. Relevant medical evidence of record also includes VA mental health treatment records. An April 2007 VA mental health report noted that the Veteran described his mood as sad and was anxious and often angry. He reported that he had enjoyed playing soccer in the past, but no longer played because he became irate when he was kicked or pushed about by other players. The Veteran stated that he separated from his wife due to his PTSD symptoms. His symptoms included anhedonia, excessive, unrealistic guilt related to his war experiences, a low energy level, impaired concentration, poor appetite, weight loss, and difficulty sleeping. He denied audiovisual hallucinations or other hallucinatory phenomenon. He reported that he hated to go to sleep due to fear of the nightmares. He denied suicidal ideation, homicidal ideation and mania. He avoided crowds as he felt uncomfortable. He reported a sense of impending doom and foreboding. In a June 2007 VA mental health report, the Veteran denied current suicidal and homicidal ideations as well as auditory or visual hallucinations. The clinician noted that the Veteran endorsed the presence of what appeared to be trauma-consistent hypnogogic hallucinations, but that he did not endorse full psychotic features. In addition, the Veteran reported some ongoing problems with his temper, but denied any episodes of violence. He also reported ongoing difficulties going to and staying asleep, nightmares, appetite disturbance and increased irritability. He stated that he had sensitivity to noise that was consistent with an exaggerated startle response of PTSD. An August 2007 VA mental health record reflected the Veteran's complaints of poor concentration, although he stated he was able to stay on task at work. He reported that he had to write things down a lot now. The clinician commented that although the Veteran stated there was a change in his memory from previous, an initial evaluation indicated that his memory was intact. The Board finds that the Veteran is not entitled to a disability rating in excess of 50 percent for PTSD. In this regard, the Board notes that his PTSD has been manifested by symptoms of depression, difficulty sleeping and nightmares, avoidance, hypervigilance, irritability, concentration problems, exaggerated startle anger and rage. The Veteran has difficulty maintaining relationships with his wife. He has passive suicidal ideations. His GAF score at his VA examination was 55, which is indicative of moderate impairment. Therefore, the Board finds that the symptoms exhibited by the Veteran for the initial period from May 5, 2007 to April 27, 2010 more nearly approximate those contemplated by the 50 percent rating criteria. 38 C.F.R. § 4.130, Diagnostic Code 9411. Consideration has been given to assigning a higher disability rating for this period. However, there is no indication from the evidence of record that the Veteran has experienced occupational and social impairment with deficiencies in most areas. In this regard, the Board notes that the Veteran was working on his relationship with his wife. He did not miss any time from work and reported that he was able to control his temper while at work. Additionally, the Veteran stated that he had a good social network with his family in his home country. Moreover, he did not show difficulties in judgment and thinking. He did not exhibit obsessional rituals, which interfere with routine activities, and his speech was normal. It was noted as able to maintain personal his finances. His PTSD symptoms did not interfere with his daily activities. Therefore, the Board finds that a disability rating of 70 percent is not warranted for the period from March 5, 2007 to April 27, 2010. 38 C.F.R. § 4.130, Diagnostic Code 9411. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher schedular rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Further, this claim need not be referred for an extraschedular rating pursuant to 38 C.F.R. § 3.321(b). See also Thun v. Peake, 22 Vet. App. 111, 114 (2008). There is no indication of an exceptional disability picture such that the schedular evaluation for the Veteran's service-connected PTSD is inadequate, as there is nothing manifested outside the scope of the rating criteria. The rating criteria do not contain an exhaustive list of symptoms associated with a mental health disorder. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Therefore, while the Veteran may exhibit some of the listed symptoms but the fact that other symptoms may not be listed does not render the symptoms unusual or exceptional. What must be considered more closely in terms of the criteria is how the symptoms impact the Veteran socially and occupationally. Here, the rating criteria reasonably describe the level of severity and symptomatology of the Veteran's PTSD. The initial 50 percent rating for the period from March 5, 2007 to April 27, 2010 contemplates not only the nature of his PTSD symptomatology, but also how the symptomatology affects his ability to function occupationally and socially. The evidence of record also simply does not show that the Veteran is unable to obtain and maintain employment solely as a result of his PTSD symptoms. Additionally, there is no evidence that the Veteran has been hospitalized for his PTSD. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the disability rating assigned. Accordingly, the Board has determined that referral of this case for extraschedular consideration is not in order. Thus, referral for extraschedular consideration is not warranted. ORDER Entitlement to an initial rating higher than 50 percent for PTSD for the period from March 5, 2007 to April 27, 2010 is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs